On Motion for Rehearing.
Upon a reconsideration of the record, we have concluded that we were in error in not sustaining the assignment of error complaining of the refusal to give peremptory instruction to the jury to return a verdict in favor of the appellant. We have concluded that the evidence conclusively shows that there was a real dispute between the parties which was grounded on facts sufficient to furnish a basis. for applying the doctrine- of accord and satisfaction. O. R. Miller tendered his check to the Good Marble & Tile Company upon condition that it be accepted in full payment, and the Good Marble & Tile Company accepted it with the notation appearing on it that it was in full satisfaction of the debt and cashed the same. There is an absence of any allegation and evidence that the check was given in ignorance of its purport or in circumstances constituting duress, fraud, or mistake.
The appellant denied liability on the contract upon which the demand in this suit was based, claiming that the debt was not his. I-Ie denied that the price stipulated in the contract was the price which he and the Good Marble & Tile Company had agreed on. He repeatedly claimed that he had been damaged in the sum of $300 by the delay of the Good Marble & Tile Company in failing to complete the contract of installing the tiling in the house within the time that he had been told by the Good Marble & Tile Company that it would be completed. He further contended that this delay was due entirely to the failure of the Good Marble & Tile Company to promptly and properly perform the services had contracted to perform in installing the tiling. He also claimed that the tiling in one of the bathrooms in the house was not of the kind and duality called for in the contract and should be replaced with the proper kind and quality. He claimed the right to deduct or withhold the sum of $65 until that replacement was made; that replacement had never been made, and the tiling objected to and admitted to be a different kind and quality was still there. He claimed that a plumber’s bill for repairing a water pipe which had been damaged by an employee of the Good Marble & Tile Company, in preparing the floor of the bathroom for laying the tile, had been charged to him, and for which he was not responsible. All of the above items and counterclaims were fully discussed between the appellant Miller and Mr. Good of the Good Marble & Tile Company in April, 1927, when the check in evidence was given. We find no evidence upon which the jury could fairly conclude that the appellant Miller’s claim at the time the check was given was insincere and simulated for the purpose of obtaining a reduction in the price. It is believed that this court should hold, as a matter of law, that the settlement was fairly made and is, binding on the parties. Root & Fehl v. Murray Tool Co. (Tex. Com. App.) 26 S.W.(2d) 189; 1 Ruling Case Law pp. 194, 195.
The former judgment of affirmance is therefore Set aside, and the judgment of the district court so far as between C. R. Miller and the Good Marble & Tile Company is reversed, and judgment here rendered in favor of O. R. Miller that the Good Marble & Tile Company take nothing- in its cross-action against *327C. R. Miller; tie Good Marble & Tile Company to pay tbe costs of appeal and all costs in tbe trial court incurred by O. R. Miller.